Ha.A v. Greece (no. 58387/11), [Articles 3, 5(1) & 5(4)], 21 April 2016

Thursday, April 21, 2016

The case of Ha.A v. Greece (no. 58387/11) relates to an Iraqi national who was arrested for irregularly entering Greece in August 2010. An order was made to detain him pending deportation, and he was transferred to the Tychero border post. The applicant’s asylum claim was rejected. He challenged his detention on 13 December 2010, but this was upheld on the basis that he posed a risk of absconding. This decision was revoked in January 2011 as he had been offered accommodation by an NGO, and he was released.

The applicant complained before the ECtHR that there had been a violation of Article 3 ECHR on account of his poor conditions of detention at the Tychero border post, and violations of Article 5(1) and 5(4) ECHR in relation to the lawfulness of his detention and inability to challenge it.

Given several reports by Greek and international bodies that visited the Tychero border post which described severe overcrowding, the ECtHR considered that the applicant did not have sufficient living space according to the criteria set out in its previous case law. As such, the detention of the applicant for five months in these conditions amounted to a violation of Article 3 ECHR.

The Court considered that the applicant’s detention was based on national law, and was for the purpose of preventing his irregular stay in Greece and for the purpose of his expulsion. The period of his detention of around five months was not excessive in light of the administrative formalities for expulsion, its request to Turkey to admit the applicant and it’s processing of his asylum claim. There was therefore no violation of Article 5(1) ECHR. There were shortcomings in domestic law at the relevant time as to the effectiveness of the judicial review of detention pending deportation in violation of Article 5(4) ECHR, in accordance with the ECtHR’s previous case law (see e.g. A.A. v GreeceTabesh v. GreeceS.D. v Greece).

Based on an unofficial ELENA translation. The English press release from the ECtHR is available here.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



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